NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TRUTHOUT,

Plaintiff

- Appellant,

v.

DEPARTMENT OF JUSTICE,

Defendant

- Appellee. No. 14

- 16288

D.C. No.

2:12

- cv

- 02601

- LKK

- CKD

MEMORANDUM *

Appeal from the United States District Court

for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding

Submitted July 8, 2016 **
San Francisco, California

Before: SILVERMAN, and NGUYEN, Circuit Judges, and ANELLO, *** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Michael M. Anello, United States District Judge for the Southern District of California, sitting by designation. 

# FILED

JUL 13 2016

MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2

T r uthout appeals the denial of its request for records under the Fr eedom of

Information Act (FOIA ) related to the FBI ’s practice of verifying FOIA privacy

waivers. The D epartment of Justice (D OJ ) moved for summary judgment,

a rguing th at the requested docume nts we re exempt from disclosure under FOIA

Exemption 7E, which applies to “records or information compiled for law

enforcement purposes” where disclosure would reveal “techniques and procedures

for law enforcement investigations or prosecutions.” 5 U.S.C. § 552(b)(7)(E). In

support of its motion , the DOJ submitted the declaration of David Hardy (“Hardy

Declaration”) , a Section Chief for the Records Management Division of the FBI.

T he full declaration was submitted to the court in camera , while a heavily redacted

version was filed on the public docket. Truthout moved to strike the Hardy

D eclaration or, alternatively, file it on the public docket. The dist rict court denied

the motion to strike and granted summary judgment in favor of the DOJ,

d etermining that it was unnecessary for Truthout to file an opposition. Truthout

object s to the court’s reliance on the in camera declaration, to the summary

judgment ruling

, and to the denial of their ability to f ile a response

. We agree with the district court that the redacted Hardy Declaration

“submitted as much detail in the form of public affidavits and testimony as3

po ssible,” and that a further explanation would in effect force “the agency to reveal

the information contained in the withheld documents.” This is a rare occasion

where disclosure of further facts “would undermine the very purpose of [the

government’s] withholding.” Lion Raisins, Inc. v. Dep’t of Agric.

, 354 F.3d 1072,

1082 (9th Cir. 2004)

. Thus, the government “has submitted a s detailed public

affidavits and testimony as possible.” Doyle v. F.B.I. , 722 F.2d 554, 556 (9th Cir.

1983).

The Hardy Declaration provided the district court with an adequate factual

basis on which to make a decision regarding summary judgment. Id. a t 555

.

F urther, on de novo review, we agree with the district court ’s legal conclusion that

there is no genuine issue of material fact as to whether the withheld documents met

the criteria outlined in FOIA Exemption 7E. Lion Raisins , 354 F.3d at 1078

.

Finally, while we agree that the di strict court erred by ruling on the

government’s summary judgment motion without allowing Truthout to file an

opposition

, see S. California Edison Co. v. Lynch , 307 F.3d 794, 807 (9th Cir.),

modified

, 307 F.3d 943 (9th Ci r. 2002) , any error was harmless

. Tru thout was

afforded an opportunity to move to strike the Hardy Declaration , and h as not on

appeal pointed to any arguments or evidence that it could put forth in addition to

what it has already argued.

AFFIRMED.